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Interest organisations take legal action ‘so that most vulnerable are heard’

Interest organisations are increasingly taking legal action and that’s a good thing for democracy, says PhD candidate Rowie Stolk. ‘It means that the most vulnerable social groups – including children and refugees, who tend to have a weaker political position – are protected.’

The subject of Rowie Stolk’s PhD thesis couldn’t be more topical. The legal expert conducted research into access to justice among interest organisations such as the Dutch Council for Refugees, Milieudefensie and Urgenda. Nowadays, it’s almost commonplace for interest organisations to take legal action against the Dutch government, which has been reprimanded for its nitrogen policy, banned from supplying parts for F35 aircraft to Israel and forced to significantly cut greenhouse gas emissions following the ‘Climate Case’ (Urgenda).

Recently, Stolk’s colleague Dr Joris Larik referred to the Netherlands as ‘a kind of laboratory for legal action by NGOs’, and with good reason. He added that within Europe, the Netherlands is the place to launch these legal proceedings.

'It’s important that all interests – including the unpopular ones – have access to the court.'

Playing politics in court

However, opinions are very divided on the subject of Stolk’s PhD thesis. Stolk sees the increasing numbers of interest groups taking legal action as a positive development. Critics, on the other hand, including politicians from coalition parties such as the PVV, NSC and VVD, believe that the cases launched by interest organisations disrupt the democratic process (NOS article in Dutch) and stress the importance of the separation of powers. They argue that politicians should weigh up the various interests and draw up policy based on those interests, without interference from the courts.

Photo: Monstera Production through Pexels.com

Everyone’s equal, but some are more equal than others

Stolk feels that this view denies the reality of the situation: ‘It implies that all interests have an equal chance to be heard in The Hague. They simply don't. Take refugees, who don’t have the right to vote, and children who are too young to vote. There are also collective interests such as the environment. It’s more difficult for the parties that stand up for those interests to get a seat at the table. As a result, certain interests risk going unacknowledged and unheard. This is especially the case when it comes to the interests of vulnerable people, and much less to the strong economic interests of large companies, for instance. It can lead to politicians failing to weigh up all interests before they vote on a particular issue or draw up policy.

Access to justice – even for unpopular interests

It would be easy to misinterpret Stolk’s point of view, so it’s good to separate the two issues at hand. The ability to stand up for a specific interest in court is a positive thing, according to Stolk: ‘Anyone should be able to stand up in court and say: this interest is important and the policies currently in place don’t address it.’ However, Stolk doesn’t feel that interest groups should always get what they want in court: ‘How far the judge is allowed to go in their decision is another issue entirely. It’s important that all interests – including the unpopular ones – have access to the court.’ Basically, the court acts as an equaliser in an uneven political playing field.

Interest organisations

Interest organisations play an important role. The alternative – launching legal proceedings as an individual – would not provide sufficient legal protection. Stolk explains: ‘Inequality occurs on different levels. Little money, lack of time and knowledge, perceived embarrassment… all these factors can deter people from taking legal action against the government. Interest groups are able to compensate for the inequality between the government and citizens as they have the necessary resources and knowledge to bridge the gap.’ Stolk also mentions interest organisations’ strategic capabilities. ‘Interest organisations make tactical moves, just like the government. They might think: if we pull it off in this case, we could take it a step further in the next one.’

'In the US, interest groups fought through the courts to abolish slavery and end racial segregation between white people and black people.'

Lessons from the US

While the Netherlands is a testing ground for interest group litigation within Europe, it’s a relatively recent phenomenon. In the US, legal action of this kind was first launched as far back as the 1930s and 1940s. Stolk explains: ‘There, interest groups fought through the courts to abolish slavery and end racial segregation between white people and black people.’ America’s history and experience with this kind of legal action, known as ‘public interest litigation’, prompted Stolk to travel to Los Angeles to expand her research. Stolk: ‘Due to the US' lead in these kinds of cases, research in this area is more advanced there than it is here. In the US, it’s a separate field of law and this issue is viewed from a variety of angles, including social science. Gathering new perspectives has enabled me to take a more critical view of the Dutch debate and look beyond assumptions.’

Rowie Stolk will defend her PhD thesis (in Dutch) entitled ‘Procederende belangenorganisaties in de polder: Een interdisciplinair perspectief op de toegang tot de rechter’ (meaning ‘Litigating interest groups in the polder: an interdisciplinary perspective on access to justice’) on 23 April at 16:15 in the Academy Building. The thesis summary (in English) is available here.

Text: Helena Lysaght
Photo: Getty Images through Unsplash+

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